2013 ORS § 31.600¹

Contributory negligence not bar to recovery

• comparative negligence standard

• third party complaints

(1) Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant. This section is not intended to create or abolish any defense.

(2) The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. The failure of a claimant to make a direct claim against a third party defendant does not affect the requirement that the fault of the third party defendant be considered by the trier of fact under this subsection. Except for persons who have settled with the claimant, there shall be no comparison of fault with any person:

(a) Who is immune from liability to the claimant;

(b) Who is not subject to the jurisdiction of the court; or

(c) Who is not subject to action because the claim is barred by a statute of limitation or statute of ultimate repose.

(3) A defendant who files a third party complaint against a person alleged to be at fault in the matter, or who alleges that a person who has settled with the claimant is at fault in the matter, has the burden of proof in establishing:

(a) The fault of the third party defendant or the fault of the person who settled with the claimant; and

(b) That the fault of the third party defendant or the person who settled with the claimant was a contributing cause to the injury or death under the law applicable in the matter.

(4) Any party to an action may seek to establish that the fault of a person should not be considered by the trier of fact by reason that the person does not meet the criteria established by subsection (2) of this section for the consideration of fault by the trier of fact.

(5) This section does not prevent a party from alleging that the party was not at fault in the matter because the injury or death was the sole and exclusive fault of a person who is not a party in the matter. [Formerly 18.470]

Notes of Decisions

Ordinary contributory negligence on the part of a guest passenger is a partial de­fense resulting in a diminished recovery rather than in no recovery at all. Johnson v. Tilden, 278 Or 11, 562 P2d 1188 (1977)

Comparative negligence of investor, his spouse, and his guardian could not be used as offset to gross negligence of brokerage firm. Ryan v. Foster & Marshall, Inc., 556 F2d 460 (1977)

Where evidence es­tab­lished that, after collision with truck, train came to rest 135 feet beyond point of impact, reasonable minds could differ over relative fault of parties, and it was not error to submit ques­tion to jury. Resser v. Boise-Cascade Corp., 284 Or 385, 587 P2d 80 (1978)

Even though doctrine of implied assump­tion of risk is abolished by [former] ORS 18.475, legislative intent is that con­duct which is sometimes labeled assump­tion of risk but which is subspecies of contributory negligence can be compared in appor­tioning damages. Baccelleri v. Hyster Co., 287 Or 3, 597 P2d 351 (1979)

An injured per­sons con­duct which in fact is a cause of the injury and which constitutes fault, including negligence, is to be considered in product liability ac­tions, unless users alleged negligence consists of the kind of con­duct that goes toward making the product dangerously defective in the first place. Sandford v. Chev. Div. of Gen. Motors, 292 Or 590, 642 P2d 624 (1982); Wilson v. B.F. Goodrich, 292 Or 626, 642 P2d 644 (1982)

It was error to instruct jury that landlord was not liable to invitee for injury from condi­tion whose danger is known or obvious to invitee unless harm could nevertheless be anticipated, because such an instruc­tion imports ele­ments of contributory negligence and is, thus, incompatible with comparative negligence statute. Woolston v. Wells, 63 Or App 7, 663 P2d 408 (1983), affd 297 Or 548, 687 P2d 144 (1984)

This sec­tion addresses itself only to those per­sons against whom recovery is sought when case is submitted to trier of fact for comparison of fault. Mills v. Brown, 303 Or 223, 735 P2d 603 (1987)

Because there was evidence offered from which jury might have concluded that plaintiffs injuries were exclusively or primarily result of his failure to fasten his safety belt, and because jury could have found plaintiffs failure to do so was not reasonable under circumstances, jury should have received evidence offered by defendant on issue of safety belt de­fense. Dahl v. BMW, 304 Or 558, 748 P2d 77 (1987)

Failure to use safety belt is not properly ques­tion of failure to mitigate damages and proper method of raising de­fense is through allega­tions of comparative fault. Morast v. James, 304 Or 571, 748 P2d 84 (1987)

Insurer may be vicariously liable for ac­tions of its agents, including counsel it hired to defend its insured. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

Prohibi­tion against making comparison of defendants fault with fault of per­son who is immune from liability does not prevent considera­tion of con­duct of immune per­son in determining whether con­duct of defendant was substantial factor in causing injury. Lyons v. Walsh and Sons Trucking Co., Ltd., 183 Or App 76, 51 P3d 625 (2002), affd on other grounds, 337 Or 319, 96 P3d 1215 (2004)

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